TB9-07400

RAD File / Dossier de la SAR : TB9-07400 TB9-07401 / TB9-07402 / TB9-07403 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 10, 2020 Date de la décision Panel K. Wallace Tribunal Counsel for the persons who are the subject of the appeal Kingsley I. Jesuorobo Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the 'Appellant') and XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX (Associate Appellants) are citizens of Nigeria. They are appealing the decision of the Refugee Protection Division (RPD) dated February 25, 2019. [2] The RPD denied the Appellants' claims. The RPD found that the Appellant was not credible. In the alternative, the RPD found that the Appellants have a viable Internal Flight Alternative (IFA) in Nigeria. [3] No new evidence has been submitted in this appeal. An oral hearing has not been requested. [4] The determinative issues in this appeal are whether the RPD erred in its credibility findings and breached the Appellants' right to procedural fairness. A secondary issue is whether the Appellants have a viable IFA in Nigeria. DETERMINATION [5] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), I set aside the determination of the RPD and substitute my own determination that the Appellants are Convention refugees. BACKGROUND [6] The Appellant is the mother and Designated Representative of one of the Associate Appellants, her minor son XXXX who is 14 years old. Her daughter XXXX turned 18 years old after the RPD issued its decision. Her older son XXXX is 20 years old. [7] The Appellants fear returning to Nigeria because XXXX will be forced to marry a local chief. In 2011, the Appellants were financially struggling because the Appellant's husband lost his job. He began drinking and physically abusing the Appellant. From 2013 to 2017, the Appellant's husband was spending a lot of money on a car, a house and vacations. In XXXX 2017, the Appellant learned that the money had come from a deal he had made with a local chief to marry off her daughter XXXX and the chief was now demanding that XXXX be turned over to him. [8] The Appellant refused this and her husband assaulted her. She and her three children fled their village and went into hiding. Her husband and the chief threatened her if she did not return with XXXX. Fearing for the safety of herself and her children, the Appellant and her children left Nigeria and came to Canada in XXXX 2017. ANALYSIS [9] In considering this appeal, I have applied a standard of correctness to the RPD's findings as per the Federal Court of Appeal decision in Huruglica1. I have conducted my own independent analysis of the evidence. This included listening to the recording of the hearing and reviewing all of the documents submitted. The RPD Decision [10] The RPD rejected the claims for refugee protection because they did not find the Appellant or her claim credible for several reasons including: * During an independent Google search, the RPD Member found no information about the chief that the Appellants fear; * No police report was produced to corroborate the chief's existence or that he is an agent of persecution; * The Appellant does not fear her husband to the extent that he would be considered an agent of persecution; * The Appellant's husband arranged for the Visa's to the United States and assisted her to leave the country; and * In the alternative, the Appellants have a viable IFA in Nigeria. The Appellants' Position [11] The Appellants argue that the RPD made the following errors: * The RPD breached the Appellants' right to procedural fairness when it undertook its own Google search and used the results to doubt the Appellant's credibility; * The RPD misapprehended the evidence and wrongly concluded that the Appellant's husband helped the Appellants leave the country by obtaining their Visas; * Contrary to the RPD finding, the Appellant did provide a police report which named the chief as an agent of persecution; and * The RPD incorrectly assessed the viability of an IFA. Breach of Procedural Fairness [12] As stated in the RPD decision, the RPD Member undertook his own Google search on two issues. First, he searched for information about the chief who wants to marry the Appellant's daughter. Second, he searched for information about the registration of SIM cards for cell phones in Nigeria. The Member relied on the results of his search in his decision without making the Appellants aware of the search or giving them the opportunity to respond to the results. [13] This is a breach of procedural fairness. It is an error to rely on the results of an independent Google search that the Appellants were completely unaware of and had no chance to comment on or to provide any evidence in response. [14] Since the results of the search about the chief led the RPD Member to conclude that he does not exist, and therefore the Appellants face no risk of persecution, this error is serious and material to the claims. Errors of Fact and Misapprehension of Evidence [15] The RPD misapprehended the evidence and came to incorrect conclusions on material facts. [16] In paragraph 14 of the RPD decision, the Member found that the Appellant did not provide a police report to corroborate the chief's existence. This is incorrect. [17] The Appellant did provide a police report.2 The report is dated XXXX XXXX, 2017, and states that the Appellant went to the police station to report that her husband told her to prepare her daughter for marriage to Chief XXXX. When she pled with her husband to change his mind about the planned marriage he assaulted her. [18] The police report corroborates the Appellant's claim. [19] In paragraph 16 of the RPD decision, the Member found that the Appellant's husband arranged for Visas for the Appellant and her children to leave the country in XXXX 2017. Based on his assistance, the Member concluded that the Appellant does not fear her husband. The Member misunderstood the circumstances surrounding the Visas. The Visas were obtained for a planned vacation a year prior, in 2016. [20] A review of the hearing recording establishes that the Appellant stated that her husband was not aware of her plan to flee Nigeria in XXXX 2017. He obtained a Visa for her and her two younger children a year prior in 2016 for a planned family holiday to the United States. However, the older son XXXX could not get a Visa so the trip did not take place3. [21] The Visas were still valid when the Appellant and her children left Nigeria a year later in XXXX 2017 and they relied on them to enter the United States before coming to Canada the next day. [22] The Appellant testified that the church where the Appellant and her children hid from her husband and the chief arranged for the older son's Visa in XXXX 2017.4 [23] The passports for the Appellant and her two younger children5 establish that the Visas were issued on XXXX XXXX, 2016 and were valid until XXXX XXXX, 2018. [24] The older son's passport establishes that his Visa was issued on XXXX XXXX, 2017, and was valid until XXXX XXXX XXXX 2019.6 [25] The dates of the Visas in the passports corroborate the Appellant's timing of events and establish, on a balance of probabilities, that the Appellant's husband did not arrange for the Appellant and her children to leave Nigeria in XXXX 2017. [26] As a result of the procedural fairness and factual errors outlined above, the appeal is granted and I have substituted my own decision. [27] I have also assessed whether the RPD's IFA analysis is correct. In my independent assessment of the evidence, there is no viable IFA in Port Harcourt for the reasons that follow. Identity [28] Identity is not an issue in this appeal. The identity of all four Appellants is established based on my own review of the certified true copies of the Appellants' passports that were presented and accepted at the RPD hearing7. Well-Founded Fear of Persecution [29] I have considered the Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution (the Gender Guideline) in deciding this appeal. [30] The Appellant and her daughter have a subjective fear of harm or persecution from her husband and the chief. This fear is objectively well founded. Based on the evidence provided in the Appellant's testimony and the documentary evidence there is a serious possibility of persecution of the Appellant and her daughter. [31] There is a domestic violence and gender element to both the Appellant's and her daughter's fear. Their membership in a particular social group as women is the nexus and basis for persecution in this case. The Appellant's husband and the chief do not believe that the Appellant, as a woman, has any say in or ability to refuse the forced marriage of her daughter. XXXX has been treated as property and was "sold" without her knowledge or consent. [32] The Appellant's refusal to allow her daughter to be forced into marriage has led to the threats against her. It also led her husband to assault her. [33] The Appellant's sworn testimony is presumed to be truthful and the police report corroborates the Appellant's testimony. The affidavits from the church pastor8 and the Appellant's mother9 also corroborate her testimony. [34] The testimony of the Appellant as well as the affidavit from a church pastor in Nigeria10 establishes that the Appellant's husband and the chief continued to look for the Appellant and her children up until they left Nigeria. They were able to locate them when they were in hiding in a church in Lagos just prior to leaving Nigeria. [35] The Appellant's older son XXXX testified at the RPD hearing. He stated that he and his brother are very opposed to the forced marriage of their sister and will fight whoever tries to take their sister. They fear their father as well as the chief and his men since they will be viewed as obstacles that are in the way of the forced marriage.11 [36] The Appellant's sons have a derivative claim based on their mother and sister. Their opposition to the forced marriage of their sister leads to their own subjective fear. There is a serious possibility of persecution from either their father or the chief if they get in the way of the planned marriage. No State Protection [37] On a balance of probabilities, there is no state protection for the Appellants in Nigeria. The police are unable or unwilling to protect the Appellants from harm, from their husband/father or the chief. [38] The Appellant reported the planned forced marriage of her daughter and also the assault by her husband to the police. However, they provided no assistance or protection. They told the Appellant that it was a family matter.12 The widespread corruption and ineffectiveness of the police is established by the National Documentation Package for Nigeria.13 No Internal Flight Alternative [39] An IFA means that there is another city or area in the Appellants' home country where they can live safely. If there is an IFA, then the Appellants do not need to seek refuge or safety in Canada. Therefore, the claim for refugee protection would be denied. [40] Once the Board proposes a specific IFA, the onus or burden is on the Appellants to establish that the proposed IFA is not safe and reasonable. [41] The RPD proposed Port Harcourt as a potential IFA at the hearing. Both the RPD and the Appellant's counsel questioned the Appellant on this issue. [42] On a balance of probabilities, there is no reasonable IFA for the Appellants in Port Harcourt. [43] There is a two-part test to determine if there is an IFA. The IFA must be safe and it must be reasonable. It is safe if there is no serious possibility of persecution or risk to life or cruel and unusual punishment. It is reasonable if conditions in the IFA are not unduly harsh and do not jeopardize the life or safety of the Appellants. [44] In determining safety, the agent of persecution's interest and ability to find the Appellants is considered. The Appellants' personal circumstances and the general circumstances in the IFA are also considered. [45] In determining reasonableness, the Appellants' personal situation is considered such as language, religion, education and ability to earn a living. [46] Since the time of the RPD hearing, the National Documentation Package for Nigeria has been updated. Of particular relevance to this appeal, Item 5.114 was updated and establishes the extensive hardships that single women face in Nigeria in obtaining employment and housing. [47] Due to the information in the updated National Documentation Package as well as the testimony of the Appellant and her older son, I am satisfied that Port Harcourt is not a reasonable IFA for the Appellants. [48] The Documentation15 establishes that single women face extensive discrimination and hardship in finding employment and housing in Nigeria including the proposed IFA of Port Harcourt. This is particularly so if they lack post secondary education and work experience. [49] The Appellant attended college for a couple of years in Nigeria but she did not graduate from her program and has no degree16. She has very limited work experience outside of the home. She was a full-time housewife. [50] The Appellant's lack of a post secondary degree and her limited work experience together with the country conditions documented in the National Documentation Package17 establishes that the Appellant would face great difficulty obtaining employment in Port Harcourt. Many single women have to resort to commercial sex work to pay their expenses. This is an unreasonable option. Without employment, the Appellant would be unable to obtain housing. [51] Even with employment, she would face great difficulty obtaining housing as a single woman. Single women are stigmatized and vulnerable to sexual exploitation. Many landlords simply refuse to rent apartments to unmarried women.18 [52] Women also experience more difficulty than men in obtaining credit or financial assistance. Some banks will not even open an account for a woman. Even without these obstacles, with no job, obtaining credit with the bank would not be an option to secure funds for housing.19 [53] The Appellant's youngest son XXXX is a minor so he is dependant on his mother for his basic needs including housing. A lack of housing would likely have an impact on his ability to go to school and complete his public education. [54] Although XXXX is now an adult, at just 20 years old, he has no post secondary education and only two months of work experience20. XXXX, at just 18 years old, with no work experience or post secondary education is even less likely to find employment in Port Harcourt than XXXX because she is a woman. [55] As a result, without a realistic prospect of obtaining employment and housing for any of the Appellants, Port Harcourt is not a reasonable IFA for the Appellants. It is unreasonable because their health and safety would be in jeopardy without secure housing. Living on the street is not a reasonable option. [56] Both parts of the two-part IFA test must be met to determine that an IFA is viable. Since I have determined that Port Harcourt is not reasonable, it is not necessary for me to also assess whether it is safe. CONCLUSION [57] The appeal is allowed. Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are Convention refugees. (signed) "K. Wallace" K. Wallace January 10, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 139-159. 3 RPD Hearing Recording, [February 18, 2019], at [0:27:00]. 4 RPD Hearing Recording, [February 18, 2019], at [0:25:00]. 5 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 64. 6 Ibid. 7 Ibid. 8 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 139-159. 9 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 139-159. 10 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 139-159. 11 RPD Hearing Recording, [February 18, 2019], at [0:49:00 and 0:54:00]. 12 Exhibit RPD-1, RPD Record, Exhibit 2.1, Basis of Claim Form, at pp. 14-32. 13 National Documentation Package (NDP) for Nigeria (November 29, 2019), item 10.2. 14 National Documentation Package (NDP) for Nigeria (November 29, 2019), item 5.1. 15 Ibid. 16 RPD Hearing Recording, [February 18, 2019], at [0:36:00]. 17 National Documentation Package (NDP) for Nigeria (November 29, 2019), item 5.1. 18 Ibid. 19 Ibid. 20 Exhibit RPD-1, RPD Record, Exhibit 1, CBSA Package of Information, at pp. 89. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-07400 TB9-07401 / TB9-07402 / TB9-07403 RAD.25.02 (April 04, 2019) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français